Chigwell Parish Council, R (on the application of) v Epping Forest District Council [2026] EWHC 901 (Admin)

[2026] EWHC 901 (Admin)Case No AC-2025-LON-01980
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
PLANNING COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 17/04/2026
Before
HHJ Karen Walden-Smith sitting as a Judge of the High Court
Between
CHIGWELL PARISH COUNCIL)ClaimantEPPING FOREST DISTRICT COUNCILDefendant
LOIS LANE (instructed by Leigh Day) for ClaimantCHRISTOPHER MOSS (instructed by Birketts) for DefendantHearing Hearing date: 16 April 2026
Approved JudgmentThis judgment was handed down remotely at 2pm on 17 April 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................

HHJ KAREN WALDEN-SMITH:

[1]This is the judgment in the renewed application for permission to bring judicial review proceedings against the decision of the Defendant, Epping Forest District Council (“Epping Forest DC”), made on 9 May 2025 to grant planning permission to the Retirement Villages Group Limited for: “an integrated retirement community of 144 residential units (Use Class C2), 1050 sqm of communal facilities, new vehicular and pedestrian access, landscaped residents’ grounds, staff areas, refuse storage, sustainable urban drainage system, biodiversity areas ad associated infrastructure and services.” on land west of Froghall Lane, Chigwell (“the Development”).[2]Retirement Villages Group Limited were removed as the Interested Party, on their own request dated 15 December 2025, by Lang J. when dealing with the application for permission on the papers on 21 January 2026. Lang J. refused permission to bring judicial review papers by her order promulgated on 22 January 2026.[3]The focus of the application made by Chigwell Parish Council (“Chigwell”) for permission to bring judicial review proceedings is the Environmental Impact Assessment (“EIA”) screening opinion set out in section 8 of the Officer’s Report (“OR”). Chigwell contend that the screening opinion was flawed and that the grant of planning permission is consequently unlawful. Chigwell contend that the Development ought to have been subject to an EIA in accordance with the relevant regulations for this application, namely the Town and Country Planning (Environmental Impact Assessment) Regulations 2017 (“the 2017 Regulations”).

The application for permission to bring judicial review proceedings

[4]Permission to bring judicial review proceedings does not simply require a claimant to establish that they have an arguable case. It has to be established that there is “an arguable ground for judicial review having a realistic prospect of success.”(see the Administrative Court Guide 2025, paragraph 9.1.3 and the cases cited there).[5]Permission is sought on the four grounds raised in Chigwell’s statement of facts and grounds (“SFG”): Ground 1: Application of incorrect EIA regulations. The officer applied the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 (“the 1999 Regulations”) rather than the applicable Town and Country Planning (Environmental Impact Assessment) Regulations 2017 (“the 2017 Regulations”). Ground 2: Failure to have regard to the 2017 Sustainability Appraisal Report (“2017 SAR”) which Chigwell contend contained directly relevant environmental information concerning the development of the site and was a material consideration to which the officer failed to have regard. Ground 3: Irrationality in concluding that the proposed development would give rise to no significant environmental effects and failing to grapple with the conclusion in the 2017 SAR that the development of the site would lead to a likely significant adverse effect on the landscape so that the officer fell into a logical error amounting to irrationality. Chigwell is contending that there is a process- based irrationality in that there is a demonstrable flaw in the reasoning which led to the decision. Ground 4: A failure to give adequate reasons for the decision not to require an EIA so that persons interested in the decision could understand how the conclusion had been reached.[6]Before consideration of the four grounds upon which the application for permission is brought there is a preliminary issue to be determined with respect to whether this proposed development is an EIA development. If it is an EIA development then permission cannot be granted without an EIA being carried out pursuant to the provisions of regulation 3 of the EIA Regulations 2017. If it is not an EIA development, then there is no requirement for an EIA and (as is accepted by Chigwell) this challenge to the granting of permission cannot proceed.

Background to the Application for Permission

[7]Chigwell have referred to the history of the site in their SFG. In summary, the site is allocated (as CHIG. R4) for specialist care or supported housing units in the Epping Forest District Local Plan 2011-2033, which was adopted in March 2023. The approximate net capacity (specialist dwellings) was said to be 105. The site was also removed from the Metropolitan Green Belt, with the exception of the access track.[8]Chigwell set out that the site was not proposed for allocation in the 2016 Draft Local Plan or any subsequent version and it was found to be unsuitable for further testing on a number of occasions during the site selection and sustainability appraisal processes. Chigwell contend that, as a consequence, the environmental effects of developing the site were not assessed to the same extent as other site locations and that when the application for permission was made, Councillor Jefcoate of Chigwell drew to the attention of Nigel Richardson, then the Planning Service Director for Epping Forest DC, the absence of environmental testing for the site in a series of emails in July and August 2024.[9]While Chigwell submit that the history of how the site became an allocated site does not appear clear, it is made clear in an email dated 30 July 2024 from Mr Richardson that:
“it is an allocated site in the Local Plan for specialist housing, so I just want to make clear that remains the case and does not change.”
[10]The Local Plan and the allocation of CHIG.R4 were not challenged in accordance with the provisions of section 113 of the Planning and Compulsory Purchase Act 2004, and Chigwell accept that there cannot be a challenge now. While I understand the concerns of the Chigwell parish councillors, it is not appropriate to consider the documents and discussions lying behind a local plan in order to interpret the local plan This was dealt with neatly in the decision of the Court of Appeal in R(TW Logistics) v Tendring District Council & Anr [2013] EWCA Civ 9, when Lewison LJ said the following:
“[13] In support of his argument Mr Dove referred to the evolution of the Local Plan, including the original draft that Tendring DC prepared and the comments on the revisions to that draft that the independent inspector made a following a public inquiry. [14] In my judgment this kind of forensic archaeology is inappropriate to the interpretation of a document like a local plan or the CAMP [Conservation Area Management Plan]”
[11]The application for planning permission for the proposed development of an integrated retirement community of 144 residential units (Use Class C2), and the associated facilities etc, was accompanied an EIA Screening Request by Iceni Projects Limited on behalf of Retirement Villages Group Limited. This Screening Request concluded that the proposed development would not give rise to significant environmental effects that would warrant an EIA to be undertaken (paragraph 5.5 of the conclusion).[12]Chigwell’s planning committee resolved to strongly object to the application for planning permission, noting that the site was allocated for 105 units (it was “approximately 105”) whereas the proposal was for 144 units and that:
“Part 2 of the Local Plan Site Specific Policy Requirement (Design) states the approx. net capacity for this site reflects that it has been allocated for specialist care or supported units rather than self-contained homes. However, this proposal is for self-contained homes and as such the capacity of the site needs to be carefully considered” and further: “The accommodation schedule provided with this application showed a range of self-contained dwelling types and sizes, required for day to day private existence …”
[13]The OR recommended approval and that an EIA was not required and that the landscape and planning elements of the proposed development were compliant with the local plan. Epping Forest DC’s Planning Committee A voted to approve the application, subject to a section 106 agreement.[14]Chigwell sent a pre-action protocol (PAP) letter on 15 April 2025, setting out its proposed grounds of claim and requesting that Epping Forest DC revisit the resolution to grant planning permission and the EIA screening opinion. Epping Forest DC declined to revisit its determinations and the Decision Notice granting permission was promulgated on 14 May 2025.

Dwellinghouse Development

[15]Chigwell contend that this is not a dwellinghouse development, and rely upon the Use Classes Order to support their contention.[16]Regulation 3 of the 2017 Regulations, referred to above, provides that:
“The relevant planning authority, the Secretary of State or an inspector must not grant planning permission or subsequent consent for EIA development unless an EIA has been carried out in respect of that development.”
Regulation 2 defines an “EIA development” as either:
“(a) Schedule 1 development; or (b) Schedule 2 development likely to have significant effects on the environment by virtue of factor, such as its nature, size or location.” “(a) Schedule 1 development; or (b) Schedule 2 development likely to have significant effects on the environment by virtue of factor, such as its nature, size or location.”
[17]This is not a Schedule 1 development. It is also agreed that this is not a development that includes more than 150 dwellings (ii) or the overall area of the development exceeds 5 hectares (iii). In order for an EIA to be required it must include more than 1 hectare of urban development, which it is agreed it does, which is not dwellinghouse development. It is that narrow issue upon which this preliminary issue rests.[18]Chigwell contend that this is not a dwellinghouse development because the use of the phrase dwellinghouse development should be interpreted in para materia with the Town and Country Planning (Use Classes) Order 2017. Class C2 use is for residential institutions and provides:
“Use for the provision of residential accommodation and care to people in need of care (other than a use within class C3. Dwellinghouses, used as sole or main residences). Use as a hospital or nursing home. Use as a residential school, college or training centre.”
Use as a residential school, college or training centre.”[19]The proposed development additionally includes facilities that would be expected in a retirement village, including a gym/wellness centre, a restaurant and a bar.[20]Chigwell does not dispute that there are 144 dwellings, but does say that these are not dwellinghouses as the proposed development falls with Use Class C2 rather than Use Class C3, dwellinghouses used as sole or main residences, and it is therefore expressly not a dwellinghouse development.[21]In the absence of express wording to the contrary, the Use Class Order should be interpreted para materia with the 2017 Regulations. However, the Use Class Order specifies operations or uses which are not to be taken as constituting development for the purposes of the Town and Country Planning Act 1990 and it is not an interpretative tool for what is meant by dwellinghouse in other planning legislation or regulations.[22]Neither the 2017 Regulations nor the Use Classes Order define dwellinghouse or dwellinghouse development and the word “dwellinghouse” is interpreted as whether it satisfies the Gravesham test (Gravesham Borough Council v Secretary of State for the Environment (1984) 47 P & CR 142), namely a building containing facilities for necessary day-to-day living.[23]Holgate J. (as he then was) set it out in Rectory Homes Limited v Secretary of State for Housing, Communities and Levelling Up [202] EWHC 2098 (Admin) that:
“It has become well-established that the terms “dwelling” or “dwelling house” in planning legislation refer to a unit of residential accommodation which provides the facilities needed for day-to-day private domestic existence…” and, in Rectory Homes, Holgate J. found against the argument now being put forward by Chigwell; “[54] The Claimant’s argument depends upon an assertion that anything which is a dwelling or dwelling-house must fall within the C3 Use Class. In other words, that Use Class exhaustively defines what may be considered to be a “dwelling” and therefore a unit of residential accommodation falling within Class C2 cannot include a “dwelling” [55] … a property might properly be described as a “dwelling” in accordance with the physical criteria given in Gravesham without being used within the parameters of Class C3 … [57] … “Dwelling house” is not a term of art confined to the Class C3 Use Class. If recourse is had to the Use Classes Order in order to interpret the affordable housing policy in the Plan, the Order demonstrates that properties having the physical characteristics of a “dwelling” may be used as a dwelling in more than one way … [61] … a Class C2 development may include accommodation in the form of dwellings, for example flats and bungalows, each of which has facilities appropriate for private, or independent, domestic existence. But their use would only fall within C2 Use Class if “care” is provided for an occupant in each dwelling who is in need of such care. … [64] For completeness I mention the Claimant’s submission that it would be “bizarre” to treat the units of accommodation within a C2 scheme as dwellings, because they could not be lawfully used as such without the grant of planning permission for a change of use to Class C3. There is nothing in this point. It assumes that a “dwelling house” use must always fall within Class C3 and cannot, for example, form part of a Class C2 scheme. For the reasons I have given, those assumptions are incorrect and so the problem posed by the Claimant does not arise…”
[24]Chigwell accept that the proposed development contained 144 dwellings. The care provision does not prohibit them from being dwelling houses and the natural and ordinary meaning of a “dwelling-house development” is a development of dwelling houses. The 2017 Regulations expressly account for development which is not exclusively of dwelling houses and that does not, therefore, assist Chigwell in establishing a requirement for an EIA.[25]In the circumstances, an EIA is not required and this challenge must fail at the preliminary issue. While it is submitted on behalf of Chigwell that permission should be granted in order that the meaning of “dwelling house” in the context of EIA can be determined, that does not give rise to a basis for giving permission. It is not an arguable point. It is well settled that dwelling-house has an ordinary meaning and Rectory Homes deals with the arguments now being put forward.

The Grounds

[26]That determination is an end of this matter. Permission to bring judicial review proceedings is not being granted as it is unarguable that an EIA was required. However, for completeness, I will deal with the grounds briefly.

Ground 1

[27]The Officer incorrectly referred to the 1999 Regulations rather than the applicable 2017 Regulations. This was not a material error. A full consideration of the environmental impacts had been considered, as is set out in the OR, and the Officer had regard to the relevant criteria of the 2017 Regulations. While there are differences between the 2017 Regulations and the 1999 Regulations, as set out by Counsel on behalf of Chigwell, these are not relevant differences when there was an EIA Screening Request submitted alongside the application for planning permission and the requirement of considering the environmental impact is not relevant when the OR set out the consideration of the environmental impacts.

Ground 2

[28]This ground, namely the failure to have regard to the 2017 sustainability appraisal report, is in effect a collateral attack on the inclusion of the site in the plan. It may be correct that Chigwell could not understand how the site was included in the plan but this is an exercise in “forensic archaeology” and, as is set out above, the site is allocated in the local plan and that is unchallengeable.

Ground 3

[29]Chigwell contend that there was procedural irrationality, in the sense set out in R (Law Society) v Lord Chancellor [2018] EWHC 2094 (Admin). Again, this argument requires consideration of the basis upon which the site was allocated in the local plan and is not arguable.[30]The OR considers the environmental and landscape impacts of the proposed development, which involved consideration of the EIA Screening Request and a detailed consideration of the likely significant effects alongside the Landscape and Visual Impact Assessment.

Ground 4

[31]Chigwell submit that the OR fails to give reasons that are sufficient for someone to understand the basis of the decision. The touchstone is whether the council had demonstrated that it had actually determined whether an EIA assessment was needed in accordance with the law (see R (Jedwell) v Denbighshire County Council and ors [2015] EWCA Civ 1232). The OR contained sufficient reasoning to establish that the EIA was not required for the development and while the reasoning is brief, it is in my judgment, sufficient.

Conclusion

[32]I am extremely grateful to both counsel for their helpful and succinct written and oral submissions. For the reasons set out above, the application for permission to bring judicial review proceedings cannot succeed. An EIA was not required under the 2017 Regulations and the grounds raised, which I have dealt with for completeness, do not in any event give rise to an arguable case. I agree with the conclusions reached by Lang J, on the papers.